Citation Nr: 1805389 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-24 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an effective date prior to February 27, 2009, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and August 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In August 2011, the Board remanded the claims of entitlement to service connection for bilateral hearing loss and tinnitus for further development. Subsequently, in April 2013, the Board denied such claims. The Veteran appealed the Board's April 2013 decision to the United States Court of Appeals for Veterans Claims (Court) which, in October 2014, issued a Memorandum Decision vacating and remanding the matters to the Board for further consideration. Thereafter, in July 2015 and July 2016, the Board remanded such claims for additional development and they now return for further appellate review. Separately, in a July 2015 decision, the Board denied an earlier effective date for the award of service connection for PTSD. The Veteran appealed the Board's July 2015 decision to the Court which, in April 2017, issued a Memorandum Decision vacating and remanding the matter to the Board for further consideration. The issue of entitlement to an earlier effective date is decided herein. The remaining claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On July 2, 2004, VA received the Veteran's original claim for service connection for PTSD. 2. At the time of receipt of the Veteran's original claim, he had a current diagnosis of PTSD related to his military service, to specifically include his report of an explosion of a gun mount aboard the USS Hoel. 3. In a June 2005 rating decision, the AOJ denied service connection for PTSD on the basis that there was no verified in-service stressor. 4. On February 27, 2009, VA received the Veteran's application to reopen his previously denied claim for service connection for PTSD. 5. In November 2010, VA received a June 2010 letter from the Joint Services Records Research Center (JSRRC) wherein it was noted that deck logs from November 1-8, 1969, for the USS Hoel confirmed the Veteran's reported in-service stressor pertaining to an explosion of a gun bore on November 7, 1969. 6. In an August 2011 decision, the Board granted service connection for PTSD based, in part, on the newly received service department records. CONCLUSION OF LAW The criteria for an effective date of July 2, 2004, but no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2006), (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant effective date of July 2, 2004, the date of receipt of the Veteran's original claim for service connection, as argued by his attorney, is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran is seeking an effective date prior to February 27, 2009, for the award of service connection for PTSD. Specifically, he asserts that the effective date should be the date of his original claim for service connection, e.g., July 2, 2004. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In the April 2017 Memorandum Decision, the Court found that 38 C.F.R. § 3.156(c) as in effect prior to October 6, 2006, was applicable to the Veteran's claim pursuant to Cline v. Shinseki, 26 Vet. App. 18 (2012). In this regard, 38 C.F.R. § 3.156(c), as in effect prior to October 6, 2006, stated that if a supplemental report from the service department comprises new and material evidence and is received by VA before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. Such comprehends official service department records which presumably have been misplaced and have now been located and forwarded to VA. Id. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. Id. However, the retroactive evaluation of disability resulting from disease or injury subsequently service-connected on the basis of the new evidence from the service department must be adequately supported by the medical evidence. Id. In the instant case, on July 2, 2004, VA received the Veteran's original claim for service connection for PTSD. At the time of receipt of such claim, he had a current diagnosis of PTSD related to his military service, to specifically include his report of an explosion of a gun mount aboard the USS Hoel. See February 2002 and March 2004 VA treatment records. In this regard, while the February 2002 VA treatment record was not received until November 2010, the fact remains that such supports a finding that the Veteran had a diagnosis of PTSD related to his military service, to include his report of an explosion of a gun mount aboard the USS Hoel, at the time of his July 2004 claim. The March 2004 VA treatment record, which was of record and considered in connection with the Veteran's July 2004 claim, also reflects a diagnosis of PTSD. In the June 2005 rating decision, the AOJ denied service connection for PTSD on the basis that there was no verified in-service stressor. The Veteran did not appeal such decision. Rather, on February 27, 2009, VA received the Veteran's application to reopen his previously denied claim for service connection for PTSD. In connection with such claim, in November 2010, VA received a June 2010 letter from the JSRRC wherein it was noted that deck logs from November 1-8, 1969, for the USS Hoel confirmed the Veteran's reported in-service stressor pertaining to an explosion of a gun bore on November 7, 1969. Thereafter, in an August 2011 decision, the Board granted service connection for PTSD based, in part, on the newly received service department records. In the instant case, the Board finds that the criteria for an effective date of July 2, 2004, but no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400 (2006). In this regard, the Board notes that, prior to the October 2006 amendment of 38 C.F.R. § 3.156(c), there was no limitation on VA's ability to reconsider previously-decided claims in light of the submission of new and material service department records and assign an effective date potentially as early as the date that the initial claim was filed regardless of whether the Veteran provided sufficient information for VA to identify and obtain such records. Consequently, as the August 2011 Board decision granted the Veteran's claim based, in part, on the service department records received in November 2010, the Board finds that an effective date of July 2, 2004, but no earlier, for the award of service connection for PTSD is warranted pursuant to 38 C.F.R. § 3.156(c) (2006). See also Vigil v. Peake, 22 Vet. App. 53 (2008); Blubaugh v. McDonald, 773 F.3d. 1310 (Fed. Cir. 2014). ORDER An effective date of July 2, 2004, but no earlier, for the award of service connection for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, as discussed above, the claims of entitlement to service connection for bilateral hearing loss and tinnitus were last remanded by the Board in July 2016 for further development. Unfortunately, there has not been substantial compliance with the prior remand directives and, as such, these matters must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on a Veteran the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). More specifically, the Board remanded these matters in July 2016 because the September 2015 VA examiner did not address an emerging line of research, which supported a theory of delayed onset hearing loss. Additionally, the Board noted that, although the Veteran was not service-connected for hearing loss, he was seeking service connection for hearing loss based on in-service acoustic trauma; and therefore, a theory of secondary service connection for tinnitus based on hearing loss was reasonably raised by the record. Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, the Board's July 2016 remand directed the AOJ to obtain an addendum opinion addressing such matters. The remand further directed the examiner to comment on the likelihood that the Veteran's exposure to loud noises during service resulted in damage to auditory hair cells; and if so, to comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. Upon remand, a June 2017 addendum opinion was offered by the September 2015 VA examiner. At such time, the examiner determined that delayed onset hearing loss due to noise exposure was unlikely to occur. The examiner further determined that, in the absence of an objectively verifiable noise injury while in service, the association between claimed hearing loss and noise exposure while in service could not be assumed to exist; and therefore, the Veteran's hearing loss was less likely as not caused by or a result of noise exposure while in service. As rationale for the opinion, the examiner indicated that she conceded noise exposure in service, however, the Veteran did not report the presence of hearing difficulties until 31-32 years following discharge from the Navy. Additionally, the examiner provided a thorough discussion of the conflicting medical treatise evidence regarding delayed-onset hearing loss. Furthermore, the June 2017 VA examiner determined that the Veteran's current tinnitus was less likely caused by military noise exposure and more likely caused by his post-military exposure and presbycusis (age-related hearing loss). As rationale for the opinion, the examiner indicated that during a September 2011 VA examination, the Veteran reported the onset of his tinnitus 9-10 years prior (31-32 years post-discharge). The examiner further indicated that during both the September 2011 and September 2015 VA examinations, the Veteran did not report a nexus event for tinnitus. The examiner noted that the Veteran was also employed by the Railroad and known to be exposed to excessive levels of noise as he was enrolled in the hearing conservation program. She further noted that the Veteran also reported during the September 2011 VA examination an exposure to lawn maintenance equipment and stated that the only began wearing hearing protection in 2001-2005. The examiner found that an opinion regarding whether the Veteran's tinnitus was aggravated by his hearing loss was not applicable as she felt that his tinnitus was a result of presbycusis and civilian noise exposure. Unfortunately, the Board finds that this addendum opinion does not substantially comply with the Board's July 2016 remand directives. In this regard, the June 2017 VA examiner did not address the likelihood that the Veteran's exposure to loud noises during service resulted in damage to auditory hair cells and whether such damage auditory hair cells would result in a greater permanent hearing loss than otherwise would be manifest as directed by the Board. Furthermore, it appears that her opinion is internally inconsistent. Specifically, she states that, in the absence of an objectively verifiable noise injury while in service, the association between claimed hearing loss and noise exposure while in service could not be assumed to exist, but also stated that she conceded noise exposure in service. As such, an addendum opinion addressing such matters is necessary. Furthermore, with regard to the Veteran's tinnitus, the June 2017 examiner did not adequately address whether such disorder was aggravated by his hearing loss. Therefore, if his hearing loss is found to be related to service, an addendum opinion addressing such matter should be obtained. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who rendered the September 2015 and June 2017 opinions. The record, to include a complete copy of this Remand, must be made available to and reviewed by the examiner. If the September 2015/June 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The electronic record, to include a copy of this Remand, should be forwarded for review by the examiner. Based on review of the evidence contained therein, the examiner should specifically offer an opinion to the following: (A) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's bilateral hearing loss had a delayed onset resulting from in-service noise exposure? The examiner should specifically address whether the in-service noise exposure resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds that auditory hair cell damage is a likely result of the military noise exposure, the examiner should comment on the likelihood that such damaged auditory hair cells would result in a greater permanent hearing loss than otherwise would be manifest. The examiner is further requested to reconcile her statement that, in the absence of an objectively verifiable noise injury while in service, the association between claimed hearing loss and noise exposure while in service could not be assumed to exist with her statement that she conceded the Veteran's noise exposure in service. (B) If the Veteran's bilateral hearing loss is found to be related to his military service, is it at least as likely as not (at least a 50 percent probability) that the Veteran's tinnitus is aggravated by his bilateral hearing loss? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner's report must include a complete rationale for all opinions expressed. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs